GINS 3300

Mid-Term

When was the Peace of Westphalia?

1648 (end of the 30-year war)

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(Lecture 1)

What is the importance of the Peace of Westphalia?

1. States are free under international law - The principle of consent
2. States are sovereign under international law
3. States are equal as a matter of international law

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(Lecture 1)

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__CONTEXT__

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The Peace of Westphalia represents a paradigm shift in international relations where treaty states agreed to consider each other equal therefore recognizing state sovereignty and emphasizing the importance of mediation and diplomacy. AKA recognition of state rights.

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This differs from the pre-treaty era, where the Holy Roman Empire interfered with the affairs of its member states, especially regarding religious tolerance. The Peace of Westphalia included the protection of the region's three main religious communities: Catholics, Lutherans, and Calvinists.

How does Public International Law differ from Private International Law?

Public international law (PIL) governs the relationship between states, whereas private international law refers to traditional legal matters such as business or family law across national boundaries.

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PIL is the law of nations and does not provide individuals with international rights or recourse for perceived violations.

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(Lecture 1)

Core historical developments of Individual Rights

__Event Developments:__

* English Civil War
* American Revolution
* French Revolution

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__Text Developments__

* Natural Rights: All ‘men’ are born equal, and with equal natural rights
* 1215: Magna Carta
* 1627: The Petition of Right
* 1689: The Bill of Rights
* 1776: American Declaration of Independence
* 1789: French Declaration of Independence
* 1789: The US Bill of Rights

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Key enlightenment thinkers who backed the development of international human rights protection.

* John Locke
* Jean-Jacques Rousseau

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What is the Enlightenment’s key impact on the realm of international human rights law?

Brought to focus the relationship between the individual and the state and the responsibilities of each party in a liberal democratic society.

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What are two key early developments of the formalization of the protection of international human rights?

* The inclusion of minority rights in the League of Nations (ensures rights without discrimination on the basis of birth, nationality, language, race, or religion)
* The creation of the Permanent Court of International Justice (PCIJ), which sat from 1922 - 1946
* You can also mention the creation of the ILO in 1919 but that may be better suited to a question regarding earliest **agencies** (rather than treaties or textual documents) devoted to protection of human rights

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(Lecture 1)

What is the importance of the International Labour Organization (ILO)?

The ILO was founded in 1919 and is the first and oldest specialized UN agency.

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Represents one of the earliest developments of an international agency devoted to the protection of human rights. Key ILO notes include:


1. ILO engages in issues such as forced labour, freedom of association (this can be heavily associated to unions), and discriminatory practices
2. The Constitution of ILO contemplates direct participation by employers, workers, and unions, and states
3. ILO is a cooperative supervisory system that involves governments, employers, and workers’ groups for standards

(Lecture 1)

What is Just War Theory

* Generally considered to be rooted in Christian thought; however, variations have existed in most societies (the works of Sun Tzu, Ancient Egyptian customs, epic of Mahabharata).
* Outlines conditions justifying going to war (Jus Ad Bellum) and the conditions of war (Jus in Bello)
* Maintains that war is still an evil but may be a lesser evil in certain circumstances
* Developed by Thomas Aquinas but he based much of his thinking on Augustine

Context

* Christianity was at its earliest a pacifist faith but with the rise of violence against Christians and the realities of life, some sort of justification for war/violence had to be made to ensure the security of Christians and their interests

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(Lecture 1 - although notes/slides do not go into depth on Just War theory so I have referred to past courses as this may be useful in expanding on long answer questions in terms of providing context and critical analysis)

Where has modern international human rights law and international law come together most predominatly (in the modern context)?

The UN framework

* Unilateral non-use of force
* Prior to 1945, there was no space for human rights (which is at the individual level) within international law (which was purely between states)

(Lecture 1)

What is the promise of International human rights law (IHRL)

1. Individuals (and in some cases groups) enjoy intrinsic rights recognized in international law which are often based in natural law - the desire is to protect people from so-called cultural relativism
2. Reduces state monopoly on rights as IHRL is applied across the board.
3. Creates a legal area of protection
4. Considered to be the primary “spoiler” (exception) of complete national sovereignty as laid out in the Peace of Westphalia

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What is the value of using the phrase “we the people” in the UN Charter (and other rights documents)?

The use of the term “peoples'“ demonstrates the centrality of the individual and the desire to work in the best interest of the collective community rather than a certain state, society, country, government, or corporation.

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(Lecture 1)

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__Extra Context__

The desire to focus on the person stems from a liberal mentality in which teh collaboration of people is a net positive and should be protected and furthered. The furthering of this collaboration is protected when people are operating in a safe and conducive enviornment.

Key points in UN Charter preamble:

* To save future generations from war
* Reaffirm faith in **fundamental human rights**, in the **dignity and worth** of the human person and in equal rights for men and women of **all** nations
* Establish conditions for justice and respect for treaty obligations to be maintained.
* To promote social progress and better standards of life in larger freedom

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__Concept of Faith:__ What is the UN Charter preamble referring to when it states it’s desire to “reaffirm faith in fundamental human rights”?

The concept of faith is utilized to implore the importance of going beyond treaties and legal instruments and to recognize that human worth and dignity are non-negotiable.

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The fundamental rights alluded to in this portion of the preamble can generally be linked to the notion that no human should be subject to genocide, aggressive war (mass/indiscriminate loss) torture, or discrimination against women. These afforementioned rights/norms fall under **Jus Cogen** norms.

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What is **Jus Cogens** norms

Jus Cogens norms, aka peremptory norms are core principles of international law that are generally accepted by states and that any departure from is unacceptable.

* No formal agreement or document is required for something to be considered Jus Cogens (althought there are variour treaties and agreements that attempt to address departures from Jus Cogens

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How does the second Charter preamble point on “faith” relate to the third point regarding the establishment of conditions that allow for justice?

The reaffirmation of faith is a precondition to justice. Without such affirmation justice for all cannot be achieved.

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Regarding the Charter Preamble, what is the relation betwen **justice** and **larger freedom?**

Justice is a precondition for progress and human rights in larger freedom

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3 key puproses of UN

1. Maintain international peace and security
2. International development
3. International cooperaton on major world issues along with the promotion and encourgaement of human rights and fundamental freedoms for all

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What year was the Universal Declaration of Human Rights (UDHR) proclaimed?

December 10, 1948

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This is also when Canada voted in favour of adopting the UDHR.

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Where was the UDHR proclaimed?

Paris

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What international body proclaimed the UDHR?

United Nations General Assembly (UNGA)

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Who drafted the UDHR

* Ultimately drafted by UN Commission on Human Rights
* Drafted by representatives from around the world from various legal and cultural backgrounds.
* Canadian legal expert John Peters Humphrey was the principal drafter of the UDHR and was appointed as head of the Secretariat of the Commission on Human Rights
* Proclamation under UNGA Resolution 217 A

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How many articles make up the UDHR?

30 articles

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Where can one find the intrinsic rights set out in the UDHR?

Articles 1 - 28 articulate the intrinsic rights of all and therby provides the grounds for individual petitions and complaints regrding human rights

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Is democracy a right under the UDHR?

* No, democracy is not an explicit right in the UDHR.
* However, article 29 of UDHR lays out basis for democratic participation (rights are limited only by laws that are designed to ensure the progress, security, and general welfare of a people within a democratic society)

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Does the UDHR permit exemptions to the states rights or for rights to be taken away?

Article 30 of the UDHR states that Human rights **cannot** be taken away and nor can a state, group, or person act with the intention to destroy such rights and freedoms.

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UDHR as an authoritative source?

The UDHR has become the authoritative source for the interpretation of various references to human rights contained in the UN charter.

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UDHR influence / Importance

* Acts as a baseline for human rights


* UDHR has havily influenced many domestic legal orders which is manifested through the enactment of human rights legislation, the entrenchment of human rights (bills of rights) in national constitutions, and the decisions of domestic courts.

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What are the 3 core documents comprising the International Bill of Rights?

1. UDHR (1948)
2. ICESCR (1966)


1. Optional Protocol (Complaints procedure)
3. ICCPR (1966)


1. First Protocol (Human Rights Committee)
2. Second Protocol (Abolishing the death penalty)

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When does the ICCPR come into force?

1976

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List a few of the developments (treaties, conventions, agreements, compacts, etc) have led to.

1. __March 7 1966:__ International Convention on the Elimination of All Forms of Racial Discrimination
2. __November 30 1973:__ International Convention on the Suppress ion and Punishment of the Crime of Apartheid
3. __December 18 1979:__ Convention on the Elimination of All Forms of Discrimination against Women
4. __:December 10 1984:__ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
5. __November 20 1989:__ Convention on the Rights of the Child
6. __December 13 2006:__ Convention on the Rights of Persons with Disabilities
7. December 20 2006: International Convention for the Protection of All Persons from Enforced Disappearance

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(Lecture 1)

How does liberty differ from freedom?

Where freedom is an abstract concept that cannot be utilized, measured, or viewed, liberty is concrete and can be measured.

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Liberty is typically viewed to be a state where one can operate in society **free from** restrictions imposed by authorities (affecting their way of life, behaviour, or political views).

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What is arguably the most notable right laid out in the ICCPR and where in the ICCPR can it be found?

Article 1(1):

* All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

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Aside from the right to self-determination as set out in Art 1(1) of the ICCPR, what are some other key rights included in the covenant?

* Rights to life
* Recognition as a person before the law
* Freedom of thought, conscience, and religion
* Freedom from discrimination, torture, slavery, imprisonment for debt, and retroactive application of criminal law

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How many generations of rights are there?

There is consensus that there are 3 core generations of human rights and many recognize the 4th generation that we are currently experiencing.

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Briefly state the various generations of human rights

1. First Generation was focused on civil and political rights
2. Second Generation focused on economic, social, and cultural rights
3. Third Generation focused on issues of identity and solidarity
4. Fourth Generation focuses on privacy, personal information, and data rights.

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Please provide more information on the First Generation of Human Rights (what era, what did it include, etc)

* Often placed from the *US Bill of Rights* (1791) through to the UDHR; however, it can arguably be linked back to the French *Declaration of the Rights of Man and of the Citizen* in 1789
* Focus on civil and political rights resulted in the core rights and freedoms of conscience, expression, peaceful assembly, association and a number of safeguards to protect liberty and discrimination from personal characteristics
* Negative rights: to be free **from**
* Emphasis on Equality and human dignity

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Please provide more information on the Second Generation of Human Rights (what era, what did it include, etc)

* Post WWII through to the end of the 20th century
* Economic, social, and cultural rights
* Positive Rights: highlights the entitlement or **right to** certain social and economic rights, placing a responsibility on the state to ensure such rights can be enjoyed

Rights include public health, public education, adequate food, decent clothing, security, fair working conditions, unionization, social ad medical insurance, and support for elderly people.

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Please provide more information on the Third Generation of Human Rights (what era, what did it include, etc)

* Post WWII - primarily latter half of the 20th century
* Shaped mainly by issues facing people in the global south
* Focus on collective rights, which are difficult to implement with legal precision
* Some rights include the right to:
* National independence
* Sustainable development
* Peace and living in peaceful conditions
* Enjoy the benefits of belonging to society and respect for behaviours and beliefs based on a particular collective way of life
* Receive international technical, scientific, and technological assistance
* rights related to sexual, ethnic, linguistic, and religious minorities
* rights relating to genetic engineering

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Please provide more information on the Fourth Generation of Human Rights (what era, what did it include, etc)

* Right to:
* Post Cold war (1990s) - Present
* Education
* Communication
* Rights to different biological species / Animal Rights
* protection and maintenance of civilizations
* Humanization and socialization of human life

How does the issue of Universal and cultural relativism come into play with repect to human rights?

**Universal:** Recognition that everyone is entitiled to all rights under UDHR Art 2 & 18

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**Cultural Relativism:** Disagreement between mainly developed Western nations and Eastern aligned nations (especially within the Cold War era) in how rights are to be enforced within cultural traditions and norms; something that is often used as a defence by countries wishing/choosing not to ensure certain rights and freedoms to all

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What declaration was pivotal in **reinforcing** the international communities committment to international Human Rights?

1993 Vienna Declaration and Program of Action

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What is the 1993 Vienna Declaration and Program of Action?

The Vienna declaration was an important declaration by the international community reaffirming their commitment to international human rights. It aimed to harmonize the recognition and protection of human rights across the board. One of the most important articles is **Article 5,** which reinforces the following:

* Rights are universal, indivisible, interdependent, and interrelated
* Human Rights must be treated in a fair and equal manner globally
* While cultural and traditional backgrounds are important, it is the **duty** of States to **promote** and **protect** all human rights and fundamental freedoms.

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(Lecture 1)

What does Article 1 of the UN Charter state?

Article 1 of the UN charter states the UN’s 4 explicit goals:

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1. Maintain international peace and security (via taking collective protective measures to ensure security inline with principles of justice and international law)
2. Develop friendly relations among nations
3. Achieve international cooperation in solving international economic, social, cultural, and humanitarian issues.
4. To be center of harmonizing actiosn of nations to achieve the afforementioned common goals

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(Lecture 2)

What does Article 2 of the UN Charter state?

Article 2 lays out how states must act in the international realm in relation to one another:

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1. Respect the sovereignty and equality of all members
2. To ensure the rights and benefits of member states, members must fulfil obligations assumed by them in accordance with the Charter
3. International disputes must be settled by peaceful means.
4. Members must not threaten or use force against any state's territorial or political independence or any action inconsistent with the Charter.
5. Members must provide UN assistance in actions it takes and refrain from assisting those acting against the UN.
6. UN must ensure non-member states act per UN principles to the extent that international peace and security is maintained.

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What was the impetus for the creation of the UDHR?

The Holocaust

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What were the Canadian Governments concerns regarding the adoption of the UDHR that led to it abstaining from the Third Committee of the UNGA?

1. Jehovah’s Witness
2. Communist concerns

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The Canadian government was concerned that followers of Jehovah’s Witness would take advantage of the freedom of religion provision.

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Similarly, the government was concerned about communist sympathizers within the public sector exploring the right to freedom of association.

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(Lecture 2)

Below is the final section of the UDHR preamble. Read it and note what about this portion is especially important and why.

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“Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

1. “Standard of achievement” - important as it emphasizes that the UDHR is a minimum standard that all people should be able to enjoy; not necessarily the end all and be all
2. “Progressive measures” - the use of the term “progressive” highlights that parties must continually develop and protect human rights and that one step is not sufficient to safeguard human rights for all
3. While less unique, the preamble is specific in pointing out a state’s responsibility to people under their jurisdiction, not just citizens. For example, while Palestinians in Jeruselum may not be Israeli citizens, Israel maintains a duty to them as they are the occupying force, and the Palestinians are under their jurisdiction (whether you like it or not).

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(Lecture 2)

What are substantive rights in comparison to procedural rights?

Substantive rights apply all the time and are the rights individuals possess which are linked to one’s beliefs, identity, and free will. Substantive rights what most people think of when we think of our rights (expression, belief, free from discrimination, etc)

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Procedural rights apply under certain conditions and are generally linked to the substantive rights we want to enjoy. For example, Canada’s Charter of Rights and Freedoms Section 10(a) provides Canadians the right to be informed without delay for the reason of their arrest. This right ensures that the right to liberty or to be free from arbitrary detention can be realized.

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(Lecture 2)

Where are individualistic rights and \[more\] collective rights found within the international legal framework?

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Furthermore, what are the corresponding international legal documents that codify each area of human rights?

Individual rights can are well connected to Civil and Political rights, while collective rights are more related to Economic, Social, and Cultural Rights.

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* ICCPR 1966: Individual Rights
* ICESCR 1966: While individual rights remain the core of the ICESCR, the document increasingly looks at individual rights within the context of the collective and generally requires collective application and enforcement to be realized

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How do Articles 28 - 30 stand apart from the rest of UDHR?

The above articles differ from the other UDHR articles as they impose suties upon the individual rather than just the state which is the focus of the articles 1 - 27.

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List 8 key rights not included in the UDHR

1. The right to self-determinism
2. The right to a clean environment
3. The right to be informed of one’s rights and the reasons for detention
4. The right to a name and the right to have it registered
5. Protection from expulsion
6. The right against self-incrimination
7. The right to submit petitions to the government and to obtain a prompt response thereto
8. The right to reply for purposes of protecting one’s reputation

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What is the Proclamation of Tehran?

* Adopted by the International Conference on Human Rights (1968)
* Reaffirm faith in the UDHR, the “inalienable and inviolable right of all members of the human family” and the “obligation for the members of the international community.”

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Road to the ICCPR and ICESCR

1. Commission of Human Rights to prepare the first text
2. 1950: UNGA declares “the enjoyment of civic and political freedoms” and “economic, social, and cultural rights are interconnected and interdependent” (Resolution 543 (VI) para 1)
3. 1951/1952: UNGA requests that the commission draft two documents, one for civil and political rights while the other focuses on economic, social, and cultural rights
4. ICCPR and ICESCR adopted by UNGA resolution 2200A (XXI)
5. ICCPR optional protocol 1 was adopted at the same time as the covenant itself

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Were the two key covenants related to the International Bill of Rights (ICCPR & ICESCR) binding?

The ICCPR is binding while the ICESCR is not.

* The ICESCR requires an obligation of conduct, not result.

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Where can you find the notion of self-determination wthin international law?

1. Self-determination is stated as a purpose of the UN charter (Article 1(2))
2. Articles 1 & 47 of ICCPR
3. Articles 1 & 25 of ICESCR
4. ICJ Case concerning East Timor (Portugal v. Australia) 1995 confirms self-declaration as an essential principle of contemporary international law

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State the 10 fundamental principles of the UDHR

1. Dignity and justice
2. Ethics and humanitarian values
3. A cosmopolitan perspective
4. Solidarity
5. Development and wellbeing
6. Dialogue
7. Democratic space
8. Gender equality
9. Culture
10. Environment

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What is natural law?

Key ideas/points:

* John Locke (legal theorist)
* Inherent in all humans and is often linked to a divine element (or nature). Furthermore, natural law does **not** need to be codified to be accepted as legitimate.
* It is difficult to be observed (invisible)
* Must not be violated
* Substantive human rights law (UDHR Articles 1 - 20)

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What is positive law?

Key ideas/points:

* Concrete laws that are confirmed by humans (not necessarily linked to a divine elements or states of nature)
* Something that can be observed, checked, evaluated, tested
* The source, subject, and enforcers of postive law is humanity
* Regulatory laws are generally considered positive

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You can also draw a connection between common law and natual law and positive law with civic law. This likely won’t be asked on the mid-term but might help you frame your answer or reflect on what types of law are which.

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What is public international law (PIL)?

PIL is the collection of international human rights law (which includes International humanitarian law - IHL or international human rights law I-H-R-L) and international criminal law (which is generally related to the ICC).

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How are human rights established at the international level?

Human rights laws at the international level are typically established by international treaty

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How is international human rights law like traditional domestic law and how does it differ?

Like domestic, international human rights law (I-H-L) is created to regulate behaviour. The key difference is that I-H-L regulates states' behaviour rather than individuals.

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Furthermore, not only does I-H-L lay out substantive laws but often also comprises procedural norms and remedies.

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What are some of the major disagreements regarding human rights being universal?

1. Much of human rights law has been drafted with a heavily Western influence and soem have argues they are inconsistent with specific cultural, historical, and religious traditions (cultural relativism)
2. Human rights chnage over time
3. New human rights continue to be recognized

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The latter two points represent a challenge for some parties (states) who are hesitant to recognize the concept of human rights being universal if they cannot forsee what human rights may entail in the future. In other words, a party may be willing to accept certain human rights in the present but because they are unsure what human rights may include in the future, challenge the concept of human rights as universal in totality.

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Who is considered a human in the conept of human rights?

Human rights apply to sentient living human beings. Fetuses and the dead do not generally enjoy human rights. Furtermore, having the official status as a legal person does not necessarily mean the person has human rights as a “legal person” can be extended to non-human entities such as corporations.

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Do human rights focus on individual or state duties?

No, human rights focus on the individual having substantive rights and being free from interference by the state. That said, the state has a responsibility to respect, implement, and promote human rights.

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At the national level, are human rights also afforded to foreigners?

Yes, human rights of both nationals and foreigners must be respected.

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What article of the ICCPR lays out the responsibility to have a remedy for alleged violations of rights set out in the document?

Article 2 (3)(a-c)

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What is the liberal approach and how does it relate to human rights?

Liberalism is a political and social philosophy that first emerged in the 17th century. The liberal approach entaills a recognition of individual and civil rights as well as democracy or at least a form of self-determinism. While not heavily mentioned within the human rights context, liberalism is a strong proponent of economic freedom and respect for laissez faire practices.

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The liberal approach also often includes group rights such as minority rights which can be found in UDHR Art 27 (to mitigate tyranny of the majority), protection from genocide, self-determination (as previously mentioned), and other economic, social, and cultural rights.

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What are negative and positve rights, and how do they differ?

Negative rights are typically inherent rights that people possess and the codification of such rights is to ensure they are not infringed upon by the state. For example, the right to be free from discrimination by nature recognizes the equality of all humans. The codification of such right is to limit the state from interfering in this inherent right.

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On the other hand, positive rights typically impose a responsibility on the state to provide a service or situation for its citizens which are considered a right. For example, the right to publicly funded health care is a positive right as it imposes an obligation on the state to provide the individual with a service or good. By providing this service, the individual is able to realize the right to public health care.

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It is worth noting that the protection of negative rights may require positive measures on the part of the state. It is also important to remember that the separation between positive and negative rights (and subsequently civil/political rights and economic, social, and cultural rights) is questionable as they often overlap and as the Commission stated, the two are interrelated and interdependent. The distinction between the types of rights is to provide us a framework in approaching the rights and should not be taken as clear and absolute divisions.

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**How to remember the difference:**

* Negative rights = Free FROM \[interfernce/obstacle\]
* 1st Generation of rights
* Typically Civil and Political (ICCPR is more focused on negative rights than the ICESCR)
* Positive rights = Freedom TO/FOR \[certain goals or situations such as education, healthcare, etc\]
* 2nd Generation of rights
* Focuses more on economic, social, and cultural rights which is why the ICESCR can be attributed to taking a more positive rights stance

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(Lecture 3)

Why are negative rights viewed as ineffective or problematic against totalitarianism?

Within international human rights laws (negative rights), states are only responsible for their actions aginst individuals. This is problematic as it measn there is no obligation upon the state when an individual is experiencing a violation by another state or private entity.

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What is meant by the phrase “private-public dichotomy” in the context of human rights (from a negative rights perspective)?

The dichotomy is when rights norms are upheld in the public sphere where the state is involved but not applied in the private sphere meaning people are left entirely alone with no intervention in the event a person’s potential rights are violated.

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(Lecture 3)

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****I say “potential rights” because the concept of human rights within this context is solely between the individual and the state so one could argue that the individual has no rights when interacting with another individual or private entity. (This can also be rebutted, but I only meant to add this comment to explain why I used the term “potential rights”).*

Are international human rights absolute?

International human rights are not absolute in that there can be limitations applied to them. Restrictions are as follows:


1. ICCPR art 12(3)
2. ICCPR art 14(1)
3. ICCPR art 17(1)

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Some human rights documents also allow for derogations (departure from or exceptions) from observing certain rights. When derogations are permitted, it is due to a national emergency and must be:

* Temporary
* Non-discriminatory


* Respects a limited set of huaman rights (for example, derogations may not be made with respect to torture, genocide, and capital punishment)

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(Lecture 3)

State the requirements for a derogation from standard human rights protocol to be permitted

Derogation must be:


1. Temporary
2. Non-discriminatory
3. Respects a limited set of human rights (for example, derogations may not be made with respect to torture, genocide, and capital punishment)

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What happens when there are conflicting rights?

In the event of conflicting rights, the presiding authority must balance the conflicting rights by:


1. **Weighing the necessity of each party to carry out/act on their right** (not all rights are equal so the carrying out of one right might not be of equal importance as the other’ parties necessity to act on their rights - for example, the right to life is takes precedence over the right to freedom of movement)
2. **Following the doctrine of proportionality** in which there must be proportionality between the infringement and the objective of a party.

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While adjudicating conflicting rights may lead to one party having their rights limited, it must be minimal.

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\*\*\*It is important that the balancing of rights does not result in the legitimization of more injustices than it eliminates

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Which body of rights takes precedence? The rights laid out in the ICCPR or the ICESCR?

The rights laid out in the ICCPR have priority over the rights in the ICESCR which are considered more optional

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How can human rights be inalienable and non-extinguishable while also being derogated from and waived?

To be inalienable and non-extingusihable means that the rights cannot be taken from an individual. Those rights are intrinsically linked to the individual regardless of the situation or their use of their rights.

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So, while a person can waive the __application__ or __enforcement__ of their rights in certain situations, they still __retain__ those rights and can apply them at any time. Similarly, a derogation from accepted human rights does not mean that the state/party no longer recognizes those rights but rather the present situation calls for an overriding of the rights possessed by individuals.

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(Lecture 3)

What does the term “complementarity” mean in relation to international human rights?

* Complementarity is the notion that international human rights law and its ensuing supervisory mechanisms are not meant to replace domestic laws and institutions but rather take on a role when the respective state is not able or willing to enforce human rights
* In essence, international human rights law is a fall back plan to be applied if the primary domestic laws cannot be enforced
* It is important to remember that states maintin the reservation right of states to not take on the obligations imposed by international human rights law and are only subject to the international mechanisms when they agree to be

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(Lecture 3)

What does it mean if someone says that international human rights are based on minimum standards?

International human rights (I-H-L) provide the most basic and necessary requirements for an individual to live their life with dignity. I-H-L is meant to be the bare minimum standard of conduct by states and not the end-all and be-all. On this point, the invocation of international human rights is meant to be **a last resort** as states should have their own protections that at minimum meet the standards set out in I-H-L.

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(Lecture 3)

If you could describe the most significant challenge to the implementation of international human rights in one (or two) words, what would it be?

\[State\] @@__**Sovereignty**__@@

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(Lecture 3)

How does state sovereignty hinder the successful implementation of international human rights (after they’ve been agreed to)?

1. **No Report:** The state may fail to submit the required report on their progress in implementing the human rightd
2. **Superficial Report**: The state may only submit a superficial report that does not reflect their true progress on human rights
3. **Low level officials**: States may delegate the implementation of international human rights to low-level government officials such as when the report is presented to the international community
4. **No Answers**: The state may avoid/refuse to answer questions
5. **Lying**: Promises to make changes or progress but then decides to not fullfill its promise
6. **Reservations:** The state may enter extensive reservations which limit much of the purpose of the document
7. **No presentations:** The state may choose not to present its report even after submitting it

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Due to state sovereignty, a country cannot be \[legally\] compelled/forced by the international community to implement its commitments

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(Lecture 3)

Aside from state sovereignty, what are two other causes for inconsistent implementations of international human rights law?

1. **Enforcement issue:** There is a gap between international human rights theory and its actual practice
2. **Political Will**: successful implementation requires strong political will by the world’s leaders, which is extremely difficult to obtain.

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(Lecture 3)

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Personal note:

* I may refer to Graeme Young’s 2018 article titled “Political Decision-Making And The Decline Of Canadian Peacekeeping” to describe the matter of political will (and risk aversion) when leaders are making decisions within the international policy context

What is the International Court of Justice (ICJ)?

The ICJ is an international legal mechanism with the mandate of settling disputes between states and providing advisory opinions on issues brought to it by an authorized specialized UN Organ such as the UNSC.

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(Lecture 4)

What is the International Criminal Court (ICC)?

The ICC is an international legal mechanism with the mandate to prosecute individuals accused of:


1. War Crimes
2. Crimes Against Humanity
3. Genocide
4. Creimes of Aggression

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(Lecture 4)

How does the ICJ differ from the ICC?

1. The primary difference between the two bodies is that the ICJ settles issues between states while the ICC **prosecute** indivdiuals
2. The ICJ is also an entity of the UN while the ICC is independent of the UN (although the UNSC can refer an issue to the ICC for investigation)

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(Lecture 4)

What is the foundation of the ICC (legal document)?

The Rome Statute (1998) is the international treaty that provides the ICC with its Authority.

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(Lecture 4)

When was the ICC created?

The idea of the ICC was created by the 1998 signing of the Rome Statute; however, the Statute did not enter into force until July 1, 2002 (meaning the ICC became an authoritative body with the capacity to prosecute in 2002)

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(Lecture 4)

What two events are often considered to be the impeteus for the creation of the ICC? Furthermore, what outcomes from each of those events can be connected to the creation of the ICC?

Events / Outcomes related to the creation of the ICC


1. Rwandan Genocide / International Criminal Tribunal for Rwanda (ICTR)
2. Yugoslav Wars / International Criminal Tribunal for the former Yugoslavia (ICTY)

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Context / Details

* Following the aforementioned conflicts, the international community created ad hoc tribunals (ICTR & ICTY) (UNSC). While the tribunals were a positive demonstration that accountability could be held at the state level, the international community recognized the need to to create a permanent legal body dedicated to investigating and prosecuting perpetrators of such heinous crimes. This recognition led to the Rome Conference, eventually leading to the Rome Statute and subsequently the creation of the ICC.

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(Lecture 4)

List the 8 stages that led to the signing of the Rome Statute (hint: extends to the early 20th century)

1. __International Committee of the Red Cross__ (ICRC) proposes discussions on the laws or standards of/in war (jus in bello)
2. __Versailles Conference:__ discussions of holding the German Kaiser responsible was an early example of discourse regarding the accountability of leaders in conflict
3. __Nuremberg & Tokyo Trials:__ Leaders of the Nazi Reich and Japanese Empire are prosecuted for their crimes in WWII
4. __Convention on the Prevention and Punishment of Genocide:__ Early international convention with the focus of preventing and prosecuting Genocide (Genocide was not a new topic at this point but typically approached from a reactionary perspective instead of having a framework to prevent it in the first place and how to deal with it after the fact)
5. __The role of the ILC:__ The International Law Commission (ILC) is a group of international law experts mandated by the UNGA to discuss, debate, and develop international legal principles. Their work has heavily impacted the interpretation of treaties and the responsibilities and procedures of legal mechanisms such as the ICC. In fact, in 1994 the ILC created a draft statute for the creation of the ICC before the Rome Convention started.
6. __GA Res. 3314: Definition of Aggression__
7. __ICTR and ICTY:__ Rwanda and Yugoslavia reminded the international community the necessity of a permanent court prepared to prosecute individuals accused of the most heinous crimes.
8. __The Rome Conference:__ Acts as the foundation of the ICC

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(Lecture 4)

Which crime prosecuted by the ICC was added after its creation?

* The crime of aggression (COA)
* COA was added to the ICC’s jurisdiction in July 2018 by the consensus of the member states

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(Lecture 4)

How does a case come to the court?

The ICC prosecutor can bring a case to the attention of the ICC

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(Lecture 4)

How does the prosecutor bring a case to the ICC and under what authority? (In simple terms)

1. As the prosecutor is an independent entity, they may open an investigation on their own perogative. Following an investigation, the prosecutor chooses whether to bring the case to the court.
2. Situations (cases) may also be referred to the prosecutor for investigation by the UNSC.

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(Lecture 4)

What are the stages a prosecutor takes prior to taking a case to the ICC?

1. Preliminary examination
2. Investigation
3. Pre-Trial

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(Lecture 4)

Can other courts try perpetrators that the ICC does not prosecute?

Yes, other courts have the ability to try individuals accused of committing one of the four crimes if the ICC does not prosecute.

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\*It is important to remember the concept of complementarity in which the ICC is a fallback plan if national courts fail to prosecute individuals accused of committing such crimes. For example, Canada has the “

The Crimes Against Humanity and War Crimes Act” (CAHWCA) which criminalizes the laws under the ICC within domestic law so the Canadian Government has the legal capacity to prosecute such crimes within its own jurisdiction.

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(Lecture 4)

When was the term “Human rights” first given legal significance?

UN Charter (1945)

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(Lecture 5)

What are the 9 Key UN Human Rights treaties (excluding the UDHR which is not a treaty but certainly a vital legal text in the international human rights discourse)?

Treaties dealing with broad issues:


1. ICESCR (1966)
2. ICCPR (1966)
3. UNCRC (1989): Convention on the Rights of the Child (1989)
4. ICRMW (1990): International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
5. CRPD (2007): Convention on the Rights of Persons with Disabilities

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Treaties with a specific focus:


1. ICERD (1965): International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
2. CEDAW (1979): Convention on the Elimination of All Forms of Discrimination Against Women
3. UNCAT (1984): Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
4. ICPPED (2007): International Convention for the Protection of All Persons from Enforced Disappearance

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****Dates are of treaty adoption, not when they went into effect*

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(Lecture 5)

What was the effect of the cold war on international human rights? What is the importance of the ICERD (1965)

* After WWII there was an immediate push to codify human rights but simultaneously, political tensions were rising between the United States (the West) and the Soviet Union (the East) which led to the creation of further human rights instruments (beyond the UDHR) stalling out.
* The adoption of the ICERD represents the first treaty to be signed following the Human rights stalemate post-UDHR signing

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(Lecture 5)

What led to the creation of the ICERD (1965)?

The 1960 Sharpeville Massacre in South Africa which killed 69 people and injured another 180 people during an anti-apartheid demonstration (against internal movement passports for black people) led to enough international condemnation and outrage for calls to create the ICERD of 1965.

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(Reading for Week 5)

What mechanisms do human rights treaties have and how do they differ from charter-based bodies (if they differ at all)?

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Treaty-based **and** charter-based bodies utilize committees of independent experts that monitor the implementation of the core human rights treaties.

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Charter-based bodies also fall under the Human Rights Council and have special procedures, Universal Periodic Review, and Independent investigations.\`

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(Lecture 5)

When was the Human Rights Council created and by who?

The council was created by a 2006 UNGA resolution.

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(Lecture 5)

List the 6 key points of the Human Rights Council mandate?

1. **Promoting Universal Respect for the protection of all human rights and fundamental freedoms** 
2. Should address situations of violations of human rights, including gross and systematic (constant)  violations, and make recommendations thereon 
3. Promote human rights education and learning as well as advisory services, technical assistance and capacity-building 
4. Serve as a forum for dialogue on thematic issues on all human rights 
5. Make recommendations to the General Assembly 
6. Promote the full implementation of human rights obligations.

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(Lecture 5)